Paying for a Licked Candy Bar: Adobe's Content Rights Overreach

Adobe's TOS (Terms of Service)... and why EFFECTIVE Communication is important.

As many of you know, I have been a long-time user of Adobe products - going all the way back to Photoshop 2. Also, I was an Adobe (& Macromedia) Certified Instructor for a decade. I just shared 4 videos over the past couple of weeks highlighting AI integration in Adobe products, and gave a keynote last month on Adobe Express to the CreativeVerse 24 in Raleigh, NC. That stated to say - I like Adobe products.

There has been some backlash recently due to the Adobe Terms of Service, and I feel it important to bring this controversy to light and objectively discuss it. Here are 2 key points of concern from the updated Adobe TOS - 2.2 Our Access to your Content and 4.2 Licenses to Your Content.

Read and review the entire Adobe Terms of Services here.

There was enough public uproar, YouTube videos posted, social media comments and questions directly to Adobe, that they responded in their Blog on June 6 with a post entitled: "A clarification on Adobe Terms of Use"

I decided to provide screen captures of individual segments of the response. The fair thing in this situation is to look at this from multiple angles. The expressed concern about Adobe's updated terms of service is valid, and it's important to interpret these terms carefully, especially in the context of content creation and intellectual property rights. Here's a detailed analysis of the key points from both a legal and professional-usage perspective:

Key Points from the Terms of Service:

1 ? Access to Content (Section 2.2):

• Adobe states they may access, view, or listen to your content through automated and manual methods but only in limited ways and as permitted by law.
• The purposes for accessing content include responding to feedback or support requests, addressing fraud or security issues, and enforcing the terms of service.
• Adobe’s automated systems may analyze content using machine learning to improve their services.

2 ? License to Content (Section 4.2):

• Adobe requires a non-exclusive, worldwide, royalty-free, sublicensable license to use, reproduce, publicly display, distribute, modify, create derivative works based on, perform, and translate the content.
• This license is stated to be for operating or improving services and software.

Key Points from the Clarification (as defined by Adobe):

1. Moderation Processes: Emphasis on improved moderation processes due to the rise of Generative AI and the inclusion of more human moderation.
2. Limited License for Operation and Improvement: Adobe clarifies that they need a limited license to access content to operate and improve services and enforce terms or comply with the law.
3. Access for Application Functions: Access is needed for applications to perform their functions, such as opening files, creating previews, and delivering cloud-based features.Technologies and processes, including human review, are used to screen for illegal or abusive content.
4. Commitment to Customer Content: Adobe clarifies that they do not train Firefly Gen-AI models on customer content but use licensed and public domain content (yet). Adobe asserts also, that they do not assume ownership of customer work.

Interpretation from a Legal and Professional-Usage Position:

1 ??Legal Perspective:

• Licensing vs. Ownership: Adobe is clear that they do not assume ownership of your content but require a broad license to use your content for operational purposes. This distinction is critical as it means your rights to your content are retained, but Adobe can use your content under the terms specified.
• Scope of License: The scope of the license is quite broad, allowing Adobe to use, reproduce, distribute, and modify content. This broad scope can be concerning as it gives Adobe significant leeway in how they can use your content, even if the stated purpose is to improve services.
• Sublicensing: The ability to sublicense rights means Adobe can allow third parties (e.g., service providers) to use your content. This adds another layer of potential use that content creators should be aware of.

2 ? Professional-Usage Perspective:

• Transparency and Control: Adobe has made efforts to clarify their terms and provide transparency about how content is used. However, the broad language used in the license grants can still be a cause for concern among professionals who want to maintain strict control over their content.
• Machine Learning and AI: The use of content for machine learning and AI improvements, while common, can raise concerns about privacy and the extent of data usage. Adobe's clarification that Firefly AI models are not trained on customer content helps mitigate some of these concerns, but ongoing vigilance is needed.
• Content Screening: The use of automated and manual review processes to screen for illegal or abusive content is a common practice to ensure platform safety. However, professionals should be aware of this as it means their content could be subject to review.
• Operational Necessity vs. Overreach: While the necessity to access content for operational purposes is understandable, the broad rights granted can feel like overreach. Professionals who are particularly sensitive about their content's usage might find these terms too permissive.

Conclusion:

While Adobe's terms are framed to ensure operational efficiency and service improvement, the broad scope of the license they require can indeed feel like an overreach. It's essential for content creators to weigh the benefits of using Adobe's services against the potential implications of granting such a broad license. For those concerned about control over their content, it might be worth exploring additional safeguards or alternative solutions that offer more restrictive licensing terms.

Adobe's commitment to transparency and their clarification on not using customer content for training AI models are positive steps, but the broad license grant remains a significant consideration. It's advisable for professionals to stay informed and possibly seek legal advice to fully understand the implications of these terms for their specific use cases.

While Adobe's intentions may be the most saintly, there are too many undefined implications that are easy to consider plausible. For me, the feeling expressed in:

"...you grant us a non-exclusive, worldwide, royalty-free sublicensable, license, to use, reproduce, publicly display, distribute, modify, create derivative works based on, publicly perform, and translate the Content."

... feels like overreach. I have paid for Adobe products (full Creative Cloud suite) since it first moved from Boxed editions to the cloud... and I bought every version of the entire Adobe Suite prior, going back to 1996 (when I bought my first Macintosh computer post graduation).

I pay for the service of using this suite of tools. As expressed in their TOS, it give me the feeling of - buying a candy bar from the grocery store, and on my way out - having a store associate grab the bar, open it and give it a lick - then hand it back to me. Technically, sure, the candy bar is still mine, but things have changed. The experience and enjoyment have been tainted. Maybe a distasteful analogy, but hopefull it aptly captures the discomfort and sense of violation that can come with such broad licensing terms, especially from a service you pay for.

Ethical Considerations:

1 ??Expectation of Ownership and Privacy:

• Paid Services vs. Free Services: When you pay for a service, there is an inherent expectation that your content and data will be treated with a higher degree of respect and privacy compared to free services. The principle is that your payment should cover not just the functionality but also the integrity and confidentiality of your work.
• Violation of Trust: The broad rights Adobe grants itself to use your content can indeed feel like a breach of trust. Creators expect that their paid subscriptions come with robust privacy protections, not just functional benefits.

2 ? Creative Integrity:

• Control Over Content: Creatives invest significant effort into their work, and having control over how it is used is crucial. The idea that Adobe can use, modify, or even create derivative works from your content without your direct consent can undermine your creative control and integrity.
• Professional Boundaries: For professionals, particularly those working with sensitive or proprietary information, this broad access can be problematic. It could potentially expose confidential information or dilute the unique value of their creative outputs.

Practical Considerations:

1 ? Operational Justifications:

• Service Functionality: Adobe argues that broad access is necessary for operational efficiency, improving services, and ensuring compliance with laws. While these points are valid, they should be balanced with more nuanced and limited access rights to respect user privacy.
• Innovation vs. Privacy: The balance between driving innovation (e.g., through machine learning and AI) and maintaining user privacy is delicate. While improvements in AI require data, user content should be used responsibly and transparently.

2 ??Comparative Standards:

• Industry Practices: Comparing Adobe's terms with those of other paid services can offer insights. For instance, how do other leading software companies manage user content? Do they also require such broad rights, or do they offer more restrictive and user-friendly terms?
• User Control: Adobe mentions that users can control how their content is used, but this should be more explicit and easily accessible. Clear options to opt-out or limit data use for specific purposes can enhance user confidence and trust.

Conclusion and Recommendations:

• Transparency and Consent: Adobe should aim for greater transparency and user consent mechanisms. Clear, accessible settings that allow users to opt out of specific uses of their content can help balance operational needs with user rights.
• Ethical Commitment: Adobe's commitment to not using customer content to train AI models like Firefly is a positive step, but more can be done to assure users that their content is handled ethically. Regular audits and public reports on content usage can build trust.
• User Advocacy: Creators and users should advocate for more restrictive terms that better align with the expectations of a paid service. Collective feedback and pressure can lead to more user-centric policies.

In summary, while Adobe’s terms aim to support service improvement and compliance, they should be re-evaluated to better respect user content rights, especially considering the paid nature of the service. Users deserve clear, limited, and transparent use of their content, ensuring their creative control and privacy are prioritized.

So, I guess my point is this... don't charge me for the candy bar - and expect to lick it also.

Brian Sykes

PS ??Full transparency, I used ChatGPT to help me organize my thoughts around this so I could better abbreviate what otherwise would be WAY too big of an article.

Also, while I still believe Adobe produces a superior product, this issue remains unresolved, and stems from either genuine overreach - or - ineffective communication. I would like to believe the latter, and would love to be a part of getting the messaging?—?right.